Jefferson on the Constitution

Joseph Ellis, in his book The Quartet argues that many of our founding fathers who actively participated in bringing us our constitution were not focused on creating an ever binding document that would hold in place the nation’s laws forever. They sought, Ellis argues, to build a constitution that would serve as a guiding document for the political thought and ideals of the time. They understood that the Constitution would have to change, and while thy hoped that it would be endearing enough to be well respected and to not be scrapped within ten years, they did not believe the Constitution to be beyond the scope of political discussion and change.

 

This sentiment is capture by Thomas Jefferson, who was not active in the process of writing the constitution and developing its ideas since he was in France during the Constitutional Convention of 1787:

 

“Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it and labored with it. It deserved well of its country…. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered…institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him as a boy as civilized society to remain ever under the regime of their barbarous ancestors.”

 

In my mind, the most clear modern example of what Jefferson described in the quote above is the debate in our country over the Second Amendment. In 1787 our founding fathers found it important enough for the nation to be able to be build a militia when needed and for citizens to be able to bear arms to for their protection from tyrannical governments both internal and external to the United States. But the firearms of the Revolution were unlike the weapons of today’s world. The original intent doctrine suggests that we should not limit people’s ability to own and use firearms. This seems very clear with the inclusion of the the Second Amendment, but it also feels to me, that we are forcing the nation to wear its boyhood jacket when we force the modern problems with guns into the framework of the Second Amendment. It is clear that the founding fathers did not write the Second Amendment with handguns in mind. The guns of the time were bulky, slow to reload, and inaccurate. A modern handgun is easily concealable, can be fired rapidly, and is deadly accurate.

 

Jefferson, it appears based on this quote from the end of his life, would argue that the Second Amendment needed to change, that there was not a superhuman view of firearms and democratic preservation written into the Constitution to which we should affix ourselves today. The technology of the world has advanced in unpredictable ways since 1787, and Jefferson would argue that our institutions for governing the nation should change as well.

Original Intent

A popular idea among many people, in regard to the Constitution of the United States is the idea of “Original Intent.” It is a concept that suggests that our constitution should be strictly followed and narrowly interpreted, that what was written and ratified in 1788 is what should still guide our government today. Historian Joseph Ellis thinks this is a troublesome view given the nature of the Constitution’s adoption and approaches of Madison who greatly influenced the shaping of the constitution.

 

In my last post, I wrote about the Constitution as a living document, designed with the intent that it would be updated and adjusted through time to meet the needs of citizens at a given point. Ellis, in his book The Quartet, continued with this view of the document and wrote,

 

“The Constitution was intended less to resolve arguments than to make argument itself the solution. For judicial devotees of “originalism” or “original intent,” this should be a disarming insight, since it made the Constitution the foundation for an ever-shifting political dialogue that, like history itself, was an argument without end. Madison’s “original intention” was to make all “original intentions” infinitely negotiable in the future.”

 

The Constitution has few hard and fast rules, especially when the Bill of Rights and subsequent amendments are not considered. It focuses most thoroughly on the role of Congress and authorities and duties delegated to Congress. The Executive Branch is also fairly well detailed and explained, but the Judicial Branch is hardly developed in the Constitution. Broad language such as “necessary and proper” was written into the Constitution, creating  flexibility for Congress. Trying to look back at the Constitution and assume what the founding fathers waned our government and society to look like today is trivial in the eyes of Ellis. The Constitution they wrote encourages debate, argument, and new interpretation. Clinging to ideas of original intent appears counter productive, because the founders never intended for their understanding of the world to lock in specific governance rules for all time. The intent was a document which would define and separate power to allow for deliberation and debate among the branches and among the people to guide the important decisions of the nation.

 

I also believe that original intent does a disservice to the Constitution and to society by elevating the document and the founding fathers to a quasi-religious level. To assume that original intent is the most appropriate way to understand the Constitution is to assume that the document itself and the men who wrote it were somehow greater than ordinary men and that the written words of the constitution are in some sense sacrosanct and divine. Our founding fathers, the quartet detailed by Ellis in particular, no doubt achieved something remarkable with the writing and adoption of the constitution, but if you study the time and can view history through the lens of those who experienced it, you see that history was shaped by people who made mistakes just as we do today, who were counting on good luck, and who had equally cloudy judgement and foresight as today’s leaders. Just as we would assume that a law written today is not perfect and should not ever be adjusted when the situation calls for it, we should not assume that the Constitution is a document that cannot be re-imagined and re-understood as society and the world change.

A Living Constitution

Our nation is very familiar with debates regarding the constitutionality of rules, regulations, actions, and laws enacted by the Federal Government. As I write this, there are constitutional challenges brought about by our current president with issues involving his profiting from foreign individuals staying at his hotels and questions about his ability to declare a national emergency to pull in funding to build a border structure between the United States and Mexico. The questions involve whether the United States Constitution gives the president authority to do something or bars the president from doing something. We are operating with a legal document that will be entering its 231st year of service in 2019, and it is clear to all that our founding fathers could not have written a document to address ever situation that our government finds itself in today.

 

Historian Joseph Ellis writes about the approach taken by the framers of the constitution in his book The Quartet and helps us understand our relationship to the document ratified in 1788. Ellis writes, “the multiple ambiguities embedded in the Constitution made it an inherently ‘living’ document. For it was designed not to offer clear answers to the sovereignty question (or, for that matter, to the scope of executive or judicial authority) but instead to provide a political arena in which arguments about those contested issues could continue in a deliberative fashion.”

 

James Madison, who greatly shaped the text and structure of the Constitution, was focused on creating a document that could pull together the delegates of the 13 states and create a stronger centralized government. Madison knew that he would need the support of large and small states, rural farmers and more industrialized people from burgeoning cities, and would need to convince them that they would all have a voice and that no one group would unduly dominate another. Ellis suggests that we should see the Constitution as a forum for continuous discussion and improvement. He believes that the intent of the framers was to create a guiding document that would provide for national unity and governance, while reacting to the needs and evolving nature of the nation through time. To look at the Constitution as a sacred text whose word must be followed in all situations raises the level of our founding fathers to an unreasonable level. It assumes that they were somehow more than human and that the document they created is somehow greater than any other legal document before or since. The only way we can truly move forward with governance is to continually re-imagine and reshape the Constitution to function within the unique demands and challenges of the time.

Growing Wise With Age: A Quote From Ben Franklin

In his book The Quartet, author Joseph Ellis describes the conflicts and challenges that our founding fathers faced as they attempted to create a new constitution to replace the Articles of Confederation and tried to bring about a new American identity to unite all citizens living across the former British Colonies. The idea of a strong national government was not popular, but George Washington, Alexander Hamilton, James Madison, and John Jay worked to change the minds of key stakeholders and to build support for a new government structure that created a new federal government with more power than the central government established under the Articles of Confederation. One of the people who doubted the government established in the new constitution was Benjamin Franklin, an attendee of the Constitutional Convention in Philadelphia.

 

Franklin, Ellis describes, was in his 80’s at the time of the convention and in declining health. James Wilson, a colleague of Franklin’s from Pennsylvania had to read his statements, and often times Franklin’s ideas and proposals were a bit off track, but always respectfully observed. However, even in his declining health, Franklin managed to deliver one of the wisest comments on the new constitution, demonstrating self-awareness, the influence of the quartet that Ellis describes in the book, and a positive mindset that everyone should remember as we age. In an address to the convention delivered by Wilson, Franklin stated:

 

“I confess that I do not entirely approve this constitution at present, but Sir, I am not sure I shall never approve it: For having lived long, I have experienced many instances of being oblig’d, by better information or fuller consideration, to change opinions on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow the more apt I am to doubt my own judgment, and pay more respect to the judgment of others…
    In these sentiments, Sir, I agree to this Constitution, with all its faults, if they are such; because I think a  General Government necessary for us…”

 

The wisest people I have met or listened to in important conversations have expressed this idea. The people who I have seen make the worst decisions or fail to be the most considerate have demonstrated the opposite mindset. When we are young, we are eager to show our value and intelligence. We put out an image of being more competent and knowledgeable than we really are. As we get older however, we start to see through study, experience, and learning that we do not actually know as much as we would like to believe and present to the world. Accepting that we don’t know everything, that we have a limited perspective and a limited amount of time to observe the world helps us be more honest and open to information which may conflict with what we already believe and with what we want to believe. To find the best outcomes and to be the most considerate of what is really taking place around us requires that we be open to changing our mind and to objectively listening to the opinions of those around us, especially sagacious leaders.

Sovereignty

Sovereignty is a difficult concept, even though it seems pretty easy and strait-forward. A quick Google definition of sovereignty is “supreme power or authority,” but what this means in the real world is more muddy than what the Google definition suggests. From the quick definition one might think of the Supreme Court and suggest that the court is the supreme power and authority in the United States, but with our separation of powers, the Supreme Court’s authority is somewhat limited and is not all encompassing. The Supreme Court is a good example of the complexity of sovereignty and the challenges of truly understanding how power and authority interact within a society and government.

 

The most challenging question about sovereignty and authority is the question of where authority comes from. The American Revolution was fueled by the idea that sovereignty rested within the individual states, whose constitutions governed the relationship between their populations and their ruling authorities. Today, sovereignty rests far more with the federal government rather than with the states. At the time of the writing of our constitution, a fundamental shift in sovereignty was taking place between the federal government and the states. Joseph Ellis captures this conflict in his book The Quartet describing the way that Washington, Madison, Hamilton, and John Jay bent the idea of sovereignty to give rise to the sovereign federal government that we eventually came to understand today.

 

“The knotty question of sovereignty – did it reside in the states or in the federal government?-was the central issue requiring a clear resolution. If the federal veto proved impossible, an alternative argument, an artful finesse, might be that sovereignty was located in “the people,” a somewhat ambiguous formulation that bent the shape of the new constitution in a national direction.”

 

Ellis explains the way that our national focus on the individual, the liberties of the individual, and the notions of sovereignty came together to create a new idea of how governments and individuals should relate to each other. Sovereignty was believed to rest with the people, and people had natural human rights and authority which they could then divest in the government. This is not an obvious thought and idea, and even today, we have retreated from this view. We often now see the Federal Government as the ultimate authority of the land, not the people. Our rights and freedoms flow from the Federal Government which decides what we can and cannot do and which guarantees us certain rights in writing. Power and authority seem like they are strait-forward concepts, but Ellis’s writing on sovereignty at the nation’s founding and our complex shifting views of sovereignty demonstrate that it is more complex than it first appears.

The Whole

The United States is an interesting place. We have become an incredibly wealthy nation and have done things to advance things like technology, living standards, and scientific knowledge in ways that have improved the entire globe. The achievements of the United States have come while we have simultaneously adopted a narrative of individuality and individual success. It is our freedom, our pursuit of capitalism and greatness, and our individual desires to achieve and become great that have pushed our country to what it is today.

 

At least, that is the story we tell ourselves. While this narrative has taken hold, we have also had countless people who have advocated not for just individual freedom and success, but for national unity and for a cohesive vision of our society. Individuals who have been willing to sacrifice their own self-interest for the welfare of others has also been part of our American story, but it is often forgotten or at least not celebrated in the way that ruthless capitalism is (think about all the books written about Steve Jobs). Forgetting the connections between us all, the degree to which some people do everything they can for others, and the importance of becoming one people across the country is not new.

 

In his book The Quartet, Joseph Ellis takes a critical look at the actions of four of our founding fathers to bring about the adoption of our current constitution following the Articles of Confederation. In my last post, I wrote about John Jay, a relatively unknown founding father, and someone who made decisions across his political career to drive forward the national interest rather than a personal or state interest. An example of his nation-first mindset is given in The Quartet surrounding the question of Vermont Statehood. The state of New York at one point included what is now Vermont, and most New Yorkers did not want to allow Vermont to become its own state. Jay, however, recognized that Vermont statehood would be good for the United States as a whole, even if it was not in the immediate interest of New York. “Despite pressure from the New York legislature,” Ellis writes, “he would not budge from his conviction that the whole needed to take precedence over the parts, the first clear expression of his national orientation.”

 

I don’t have a prescription for the perfect balance between individualism and group centered thought, but I think the United States would do well to better recognize our interdependence and to encourage more actions that made personal sacrifices for the good of national unity. There have been studies recently that demonstrate that greater income inequality, particularly between an extremely wealthy few and the masses can lead to political instability, which could be damaging for the country as a whole. At the same time, encouraging individual success and achievement is of crucial importance. As Tyler Cowen describes in his book The Complacent Class, achieving economic growth should be a top priority, as increased GDP will lead to increased living standards and compounding returns on development and advancement. Encouraging wealth building potential can help with GDP growth, but on its own and without recognition of the value of social cohesion, instability can erupt and dismantle economic progress and development. The policy implications and solutions are difficult to think through, but on an individual level I think we can all do more to better respect the whole and discount our own personal interests.

John Jay and America’s Founding

When I picked up The Quartet by Joseph Ellis I was not surprised that the book focused on George Washington, Alexander Hamilton, and James Madison, three giants in the world of American history. I was surprised, however, with the fourth member of the quartet that Ellis suggested had the greatest impact on American nationhood and the shaping of our Constitution, John Jay. Ellis describes Jay as the man who, “almost singlehandedly wrote the New York constitution,” and as an eloquent leader who learned the value of a strong executive and a strong central government for maintaining cohesion and unity within a political boundary. His political experience leading New York and serving as president to the Continental Congress shaped his views on early governance in America and allied Jay with Washington, Hamilton, and Madison who believed and advocated for a new government to replace the Articles of Confederation which served as a compact to unite the newly independent states following the Revolutionary War.

 

Jay’s alignment with Washington, Hamilton, and Madison furthered the cause for a new American government thanks to his ability to win allies and influence people. Ellis describes Jay by writing, “Permanently poised, always the calm center of the storm, when a controversial issue arose, he always seemed to have thought it through more clearly and deeply than anyone else, so that his opinion had a matter-of-fact quality that made dissent seem impolite.” Ellis also describes the how his commitment to an effective central government arose, writing about his time as the leader of the provisional government of New York and of the New York constitution (that he wrote) which vested an expansive authority within the executive branch:

 

“Jay was also showing his true colors as a conservative revolutionary, a rare hybrid  that simultaneously embraced American independence and endorsed political structures that filtered popular opinion through several layers of institutionalized deliberation before it became the law of the land.”

 

What I learned about John Jay while reading The Quartet served as a reminder to me of just how little I truly knew about our nation’s founding. It is commonplace for people to refer back to great moments of importance in human history, such as  the World Wars, the American Revolution, or any other point in time that had a great impact on the future of a country, society, or on humanity as a whole and ascribe a certain meaning to that time. What happens when we do this, however, is that we make assumptions and leave out key actors and perspectives. Jay had a first row seat to the founding of America and played a huge role in shaping the direction of New York and of our current Constitution, yet his name and the lessons he learned are largely unknown to most American’s. Jay’s story has lessons of political deal-making and influence, of learning from experience and translating personal lessons into movements to benefit the whole of society. Ellis does an excellent job in his book helping us better understood this forgotten giant of the American Revolution.

Conflicting Views of the Continental Army

The American Founding Fathers and the citizens of the American Colonies had a lot of conflicting views about government and governance at the time of the American Revolution. Post war, the states existed as effectively autonomous sovereign nations tied together by shared yet distinct histories. During the war, the citizens needed an army capable of defeating the British, but also feared the power that a strong standing army would hold. Throughout the revolution and post-war period, the states understood that they would need to pay the army and pay for the support they received, but no one wanted to have a central authority collect monies to pay the soldiers and mercenaries who fought against the British. Joseph Ellis captures the conflict in his book The Quartet and writes,

 

“The unspoken and unattractive truth was that the marginal status of the Continental Army was reassuring for the vast majority of Americans, since a robust and professional army on the British model contradict the very values it was supposedly fighting for. It had to be just strong enough to win the war, or perhaps more accurately not lose it, but not so strong as to threaten the republican goals the war was ultimately about.”

 

The Continental Army at points was barely holding together with minimal supplies and food. Robert Morris, a private citizen, stepped in and paid the soldiers and army himself, from his own private funds, and was viewed as a war profiteer. The Colonies sought independence, but fears of a strong standing army and a history of abuses by a central authority created fear among the colonies that hampered their efforts to build a robust force to bring them the independence they desired.

 

The conflict within the mindset of the colonies is a phenomenon we still see happening within American politics today. Foreign policy and healthcare are two arenas where similar conflicts still emerge and are quite visible. We want stability, positive outcomes, and assurances that we will not be bothered with inconveniences, but we are barely willing to pay for it. We expect our government to be farsighted and to operate perfectly, but we refuse to fund it fully and look for any abuse of power and any misuse of money as an example of why we cannot trust and cannot fully fund our government. Healthcare eats an enormous amount of total spending (governmental, private, and individual) in our country, but we don’t seem to actually work toward the things that make us healthier. The government spends less that 1% of total budget on foreign affairs, but people assume we spend much more. In both of these areas, spending more directly to assist health and foreign aid would reduce the problems that arise later on and become our excuses and examples of why we cannot trust government. From our founding through today it seems that our distrust of government has been less in line with reality, and more in line with our fears and the stories we tell ourselves about what we need and what values we should try to live up to as a nation.

Two Revolutions

Joseph Ellis’ book, The Quartet has an interesting subtitle: Orchestrating the Second American Revolution, 1783-1789. The small details of the history of our nation’s founding are easily forgotten, but after the American revolution, the colonies existed as mostly independent entities bound by the Articles of Confederation. The Constitution, which still governs our land, was not adopted at the time of the Revolutionary War, and Ellis calls its adoption The Second American Revolution.

 

Ellis describes the two revolutions at the start of our Nation’s independent history this way, “The first American Revolution Achieved Independence. … The Second American Revolution modified the republican framework existent in the states in order to create a nation sized republic.” The story of the adoption of our constitution is a story of viewing political power and American nationhood in a new light. It required shifting people’s views of the possible and convincing the citizens of each state that they would be better off with a stronger national government to support the independent state governments. At a time when everyone thought of politics as local politics, barely extending beyond the state capital, the Second Revolution was an attempt to convince all of the former British Colonies that they should consider what took place in other colonies as relevant to their own political lives and allow a national government to have sovereignty over their local governments.

 

Ellis continues, “The first phase of the American Revolution was about the rejection of political power; the second phase was about controlling it.” Bringing about the second revolution was not an easy task. American’s had just revolted against a strong central government led by a powerful leader. Convincing the citizens of Maine or Georgia that a political power located far away should have influence and say over the direction of the state was reminiscent of the type of power and government they had recently rejected. The thinking involved in bringing the American Constitution into being was truly revolutionary, and required skillful politics, careful persuasion, and dynamic leadership from a handful of America’s most beloved founding fathers to change the minds and opinions of a diverse group of citizens across the new nation.

Bringing a Nation Into Being

Joseph Ellis looks at the founding of the nation in stark clarity in his book The Quartet: Orchestrating the Second American Revolution, 1783-1789. Ellis cuts through the ideas and stories we tell of our nation’s founding, and looks at the most pivotal actors that worked to establish a strong constitutional government in the United States.

 

Ellis begins by explaining that a national government was not something that our founding fathers were very interested in and that most people thought of themselves primarily as statesmen (as Virginians or Pennsylvanians) rather than as Americans. He writes, “creating a national government was the last thing on the minds of American revolutionaries, since such a distant source of political power embodied all the tyrannical tendencies that patriotic Americans believed they were rebelling against.”

 

Following the Revolutionary War, the United States operated more or less as independent states, loosely bound by the Articles of Confederation. Ellis suggests that four men in particular were crucial for bringing about a “second revolution” and forming a new more powerful central government across the states. George Washington, Alexander Hamilton, James Madison, and John Jay are the four founding fathers that Ellis attributes the birth of our nation to. Without their coordinated actions, Ellis argues, a new Constitution could not have come into being and the idea of “America” would have never taken hold.

 

Our founding fathers were not a unified group of wise sages who knew exactly what was needed to spark a political revolution to bring freedom, prosperity, innovation, and a new nation into being. Our founding fathers were a diverse group who argued constantly and could hardly agree on how the states should relate to one another. The quartet that Ellis identified were instrumental in forming the idea that the states should operate in unison with a strong overarching government, something that felt dangerous given the revolution against central authority that had just been raged. Washington, a Virginian, was the public face of a new government, leading the way to convince the south that the ideas of Hamilton, Madison, and Jay were sound. Hamilton, Madison, and Jay engaged in an effort to convince the states that a unified constitution would be valuable, prosperous, and fair with the writing the Federalist Papers. Their arguments evolved over time and existed as an exploration of their constitutional idea as much as a clearly defined goal for a new nation. Without the actions of these four, the nation may have never gotten going. They created the idea of America and brought about the system of government that we know today.

 

It is important to remember how close things came to not happening. The stories we tell ourselves about our founding make it seem as thought America was destined to become a great nation. We talk about our founding fathers as though they were a unified group of impossibly wise leaders, but the reality was that they were political amateurs, fearful of dissent and tyranny and unsure about a national government to bring them together. Our politics today calls back the founding fathers and argues about their intents, but it is clear from reading Ellis’ book that even our founding fathers themselves were not clear about their own intent.